ORDER
1. Invoking the extraordinary jurisdiction of this Court under Articles 226 and 227 of the Constitution of India, the petitioner, Galla Mandi Mahila Shramik
Sangh, Satna (hereinafter referred to as ‘the society’) has prayed for seeking a declaration of the terms of ‘Hammal’ brought into existence by way of amendment in Clause 2(ja) of the Bye-laws of the Krishi Upaj Mandi Samiti as ultra vires of the Articles 14, 15 and 21 of the Constitution as well as M.P. Krishi Upaj Mandi Adhiniyam, 1972 (hereinafter referred to as ‘the Act’) and further to quash the resolution of the Krishi Upaj Mandi dated 29-4-2000, Annexure P-12, as illegal, discriminatory and arbitrary and to pass such order/orders as may be warranted in the facts and circumstances of the case.
2. Essential facts which need to be stated for disposal of this writ petition are that the petitioner is a registered society under the provisions of Trade Unions Act, 1926 having its registered office in the District of Satna. It is affiliated to Indian National Trade Union Congress. The aims and objects of the society are to make endeavour for well being of the women labourers and workers to organise and unite them, uplift their financial and social conditions and to facilitate their progress in various ways and to prevent their exploitation. It is pleaded in the petition that the State Government in pursuance of the provisions of the Act established various Krishi Upaj Mandis in the State of Madhya Pradesh and the Krishi Upaj Mandi, Satna is one of them. The said Mandi has its own bye-laws. Initially bye-law No. 2(8) had defined ‘Hammal’ which included the women workers who worked in the Mandi and were engaged in the work of cleaning collecting, weighing, loading and unloading of grains and also the work of extending assistance to male ‘Hammal’ in their work. As the women hammal had been working in the Mandi for last many years they were being issued the licence for the said purpose by the Mandi.
3. According to the writ petitioner, the respondents amended the definition of the term ‘Hammal’ in a most unreasonable and irrational manner by which women workers who had been working for a considerable length of time have been ousted from the working sphere of the mandi. It is putforth that, amendment is illegal, arbitrary and discriminatory and violative of Articles 14, 15 and 21 of the Constitution of India. It is averred in the petition that the amendment has seriously affected the women workers as they are not being permitted to work in the Mandi. It is setforth that a complaint was made by the General Secretary of the petitioner-society to the Conciliation Officer under the provisions of the Industrial Disputes Act, 1947 for intervention. Various aspects have been highlighted what ensued and how the authorities tried to intervene and how despite their sanguine intervention the Mandi in its general meeting dated 29-4-2000 resolved, adopted and enforced the amended bye-law of the society. It has also been urged in the petition that the matter was taken up by the Assistant Labour Commissioner who had tried to intervene but nothing positive ensued. In this backdrop it is contended that the amended provision is unreasonable, irrational and unwarranted and it infringes the basic essence of Article 15 of the Constitution inasmuch as discrimination has been created on the ground of sex. It is also highlighted that by amendment the women workers are deprived to work in the Mandi as a result of which their livelihood is affected and hence, the amendment is hit by Article 21 of the Constitution of India. It is also putforth that under the provisions of the Act no bye-law should be made which is inconsistent with the Act but the amendment runs counter to the various provisions of the Act and, therefore, the said amendment deserves to be declared as ultra vires. The further case of the petitioner is that the Mandi by carrying out the amendment has created an unlawful embargo as far as women workers are concerned and such impediment violates the equality clause enshrined under Article 14 of the Constitution.
4. A return has been filed by the respondent No. 4, the Krishi Upaj Mandi, Satna contending, inter alia that from 1992-93 the procedure for marketing of grain produced at the Mandi premises has been changed and the practice of cleaning the grain was discontinued and there was no need of female workers for cleaning the grain. It is putforth that the amendment reflects the present work available to the ‘Hammal’ and definition does not prohibit the grant of li-
cence to the members of the petitioner-union. If the members of the petitioner-union are desirous to work as ‘Mammal’ in loading, unloading of grains and grain bags and other physical work as shifting of bags from one place to another within the Mandi premises and if they are found physically able to perform these works they can apply for grant of licence and, therefore, no discrimination is created. It is putforth that the amendment has been brought forth in furtherance of object on which Mandi Samiti has been constituted and purpose of the amendment is to drop those functions which are unnecessary and detrimental to the work of the Mandi.
5. It is pleaded that no fundamental right is affected inasmuch as certain types of works have been stopped by the Mandi Samiti and, therefore, it is decided not to engage ‘Hammal’ for that kind of work. According to the said respondent, after the amendment, the works relating to cleaning, collection and sweeping of grain have been stopped and it is only incidental and these functions were performed by the female workers. Certain difficulties have been pointed out why these kind of works have been stopped.
6. We have heard Mr. R. K. Gupta, learned counsel for the petitioner, Mr. Sanjay Yadav, learned Government Advocate for the respondents 1 to 3 and Mr. H. K. Upadhaya, learned counsel for the respondent No. 4.
7. It is submitted by Mr. Gupta that by change of definition of term ‘Hammal’ in bye-laws the female workers have been excluded and this itself creates a discrimination which law does not countenance. The learned counsel has canvassed that the petitioner-society has been formed to cater to the need of the lower strata of the women who are engaged in the kind of work by which they are able to earn their livelihood but by the amended provision their rights have been mulcted and by such abnegation their right to life has been eroded. It is further canvassed by the learned counsel for the petitioner that the amended provision offends the conscientious embrace of Article 14 of the Constitution inasmuch as it is founded on the backdrop of unreasonableness, arbi-
trariness and irrationality. The learned counsel has also pointed out that there has been inconsistency between the Act and bye-laws and, therefore, the amendment is unsustainable.
7-A. Mr. Upadhyay, learned counsel for the respondent No. 4. in defence of the amendment has submitted that the amendment does not create any kind of inequality inasmuch both men and women are entitled to obtain the licence for the work in question. It is urged by him that by change of nature of work none of the fundamental rights is affected but the petitioner-society has made a colossal issue which really does not arise. It is putforth by Mr. Upadhyay that the members of the society cannot claim as a matter of right to do any particular types of work in the Mandi as such a right may be possibly to portray a feeling but the same does not have the sanction of law.
8. To appreciate the opposing contentions which have been rivalised with great ebullience and evidity we think it apposite to refer to Article 15 of the Constitution. It reads as under :
“15. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.
(1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.
(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to –
(a) access to shops, public restaurants, hotels and place of public entertainment; or
(b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public.
(3) Nothing in this article shall prevent the State from making any special provision for women and children.
(4) Nothing in this article or in Clause (2) of Article 29 shall prevent the State from making any special provision of the advancement
of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.”
9. On a perusal of the aforesaid constitutional provision it is quite clear that it forbids any discrimination on the grounds of religion, caste, race, sex and place of birth. The aforesaid Article also makes provision empowering the State to make special provision for the women and children. The State has the authority to make legislation to discriminate in favour of the women against the men but not vice versa. This view has been taken in the case of Dattatraya Motiram More v. State of Bombay, AIR 1953 Bombay 311. Similar view has been reiterated in the case of Shahdad v. Mohd. Abdullah, AIR 1967 J & K 120. In this context we may also refer to the decision rendered in the case of Giridhar Gopal v. State of M. B., 1953 MBLJ 529 : (AIR 1953 Madh Bha 147) where the Court upheld the constitutional validity of the Section 354 of the Indian Penal Code wherein backward social position of the women was taken into consideration. At this juncture we may also refer to the decision rendered In the case of Raghvan Singh v. State of Punjab, AIR 1972 Punj & Har 117, wherein the order passed by the Government that women were ineligible for appointment in men’s jail was held not discriminatory only on the ground of sex as the hazardous position of the women wardens or other Jail Officer could not be marginalised. In the case of Omana Oomen v. FACT Limited, AIR 1991 Kerala 129, female candidates therein were not afforded opportunity to write in the internal examination on the basis of certain restriction in working hours of women by Section 66 of Factories Act as restriction was founded on the backdrop of sex. The Court declared the action has violative of Articles 14 and 15 of the Constitution.
10. In the case of Bombay Labour Union v. Jnternational Franchises, P. Ltd., AIR 1966 SC 942, the Apex Court axed down the restriction imposed on the employment of the married woman. In the case of C.B. Muthamma v. Union of India, AIR 1979 SC 1868, the Apex Court held as under :
“The provisions in Service Rules requiring a female employee to obtain the permis-
sion of the Government in writing before her marriage is solemnised and denying right to be appointed on ground that the candidate is a married woman are discriminatory against woman. The equality of opportunity in matters relating to employment does not, however, mean that men and women are equal in all occupations and all situations and do not exclude the need to pragmatise where the requirements of particular employment, the sensitivities of sex or the peculiarities of social sectors or the handicaps of either sex may compel selectivity. But save where the differentiation is demonstrable, the rule of equality must govern.”
(Quoted from the placitum)
11. In the case of Air India v. Nergesh Meerza, AIR 1981 SC 1829, their Lordships expressed the view that there is no arbitrariness in the provision of regulation 46 which insists that the Air Hostess should not marry within four years of service failing which their services would have to be terminated but their Lordships struck down the provision which stipulated the condition that services shall be terminated on her first pregnancy as unconstitutional.
12. In the case of Lena Khan v. Union of India, AIR 1987 SC 1515, the regulation which required the air hostess employed to retire at the age of 35 years with extension upto the age of 45 years but allowed air hostesses employed outside India to continue employment beyond the age of 45 years, their Lordships deprecated such discrimination.
13. In the case of Maya Devi v. State of Maharashtra, (1986) 1 SCR 743 (sic) the requirement that a married woman should obtain her husband’s consent before applying for public employment was held invalid as unconstitutional. Their Lordships observed that such a requirement is an anachronistic obstacle to women’s equality. In this context we may profitably refer to the decision rendered in the case Gayatri Devi Pansari v. State of Orissa, (2000) 4 SCC 221 : (AIR 2000 SC 1531) wherein the Apex Court set aside the decision of the High Court which had come to hold that a lady candidate was given preference. The Apex Court ultimately came to hold as under :
“……..Otherwise, by the mere fact of any
lapse of omission on the part of the ministerial officers to identify a shop, the legitimate claims of a lady applicant could not be allowed to suffer defeating the very purpose and object of reservation itself. The view taken by the High Court has the consequence of overriding and defeating the laudable object and aim of the State Government in formulating and providing welfare measures for the rehabilitation of women by making them self-reliant by extending to them employment opportunities. Consequently, we are of the view that the High Court below ought not to have interfered with the selection of the appellant for running the 24 hours’ medical store in question.”
14. In the case of Pratibha Rani v. Suraj Kumar, AIR 1985 SC 628, their Lordships of the Apex Court came to hold that it cannot be said that upon entering into matrimony the Stridhan property of the married woman has to be placed in the custody of her husband. The High Court of Andhra Pradesh in the case of T. Sareetha v. Venkatasubhaiah, AIR 1983 Andh Pra 356, opined that no positive act of sex can be done upon unwilling person and nothing can degrade the human dignity. In a recent decision rendered in the case of Githa Hariharan v. Reserve Bank of India, (1999) 1 JT (SC) 524 : (AIR 1999 SC 1149) the Apex Court while interpreting the word “after” used in Section 6 of Hindu Minority and Guardianship Act, 1956 held that the mother could be the guardian in absence of the father.
15. We may also notice that the Apex Court had taken note of harassment of the women on the work place and has laid down the guidelines in the case of Vishakha v. State of Rajasthan, (1997) 6 SCC 241 : (AIR 1997 SC 3011) the Apex Court observed that:
“Each incident of sexual harassment of woman at workplace results in violation of fundamental rights of “Gender Equality” and the “Right to Life and Liberty.”
16. We have referred to the aforesaid decisions only to show that preferential treatment has to be given to women and injustice on the ground of gender cannot be tolerated and there cannot be discrimina-
tion against the woman on the ground of sex.
17. The core question that arises for consideration is whether there has been any discrimination on the ground of sex. The unamended definition of term ‘Hammal’ meant a Hammai as such a worker who was involved in loading and unloading of the agricultural produce and also included the persons who could help in these activity. The said definition categorically included ‘Stree Hammal’ who could do the cleaning, sweeping and collection and also help the male Hammai. The amended definition means a Hammai is a person who does loading and unloading of agricultural produce with his own labour from the trucks and other vehicles and also may fill up and empty the agricultural products from the bags. It also includes the helpers who participate in measurements and weighing of the agricultural produces. Thus on a deeper scrutiny of the definitions it is apparent that in the first one the women workers were exclusively included whereas in the amended definition there is no reference to female workers. It is submitted by Mr. Upadhyay that cleaning, sweeping and collecting are not necessary. As the work is not necessary it cannot be said that the members of the petitioner-society can claim the said work to be done by them as a matter of right. In our considered opinion such an assertion is unacceptable. The claim of the petitioner-society that the Article 21 of the Constitution is affected does not deserve acceptance. Accordingly we repel the same.
18. We have indicated earlier Mr. Gupta has contended that a female worker has not been granted licence. To this Mr. Upadhyay has submitted that if a female worker wants to do such work, there is no impediment to grant licence. On a perusal of the amended definition there are various types of workers. It is submitted by Mr. Gupta that the definition put onerous conditions and a female worker may not be in a position to do the said work and thereby it creates an invidious discrimination. The aforesaid submission of Mr. Gupta need not be dialated inasmuch as on the reading of the definition we find a ‘Hammal’ also includes a per-
son who is also involved in the work of weighing and measurement. It also includes fill-Ing up the agricultural produces in bags and other containers. In our considered opinion the definition cannot be read as a single cumulative compartment. On the contrary it is to be put into different compartments and because of such compartmenta-lisatipn it becomes purposive and avoids the vice of discrimination. To elucidate, the members of the petitioner-society can apply for licence to do any kind of work which find place in the definition and in that event they would be granted licence. They may get the licence to fill up bags and other containers with agricultural produces or they may apply for licence for assisting in weighing and meas-
urement of agricultural produces. We may hasten to add that we give emphasis on the word ‘sahayata’ which means assistance. It means the women workers can assist the male workers in doing these works. If read in this manner discrimination is ostracised and the women are able to participate and assist the male workers. In our view the interpretation of the definition in this manner saves it from the assail of Articles 14 and 15 of the Constitution and accordingly we do so.
19. Consequently, the writ petition is disposed of without any order as to costs.